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Boston College Law Review Volume 30 Article 2 Issue 2 Number 2 3-1-1989 The Resurgence of Mens Rea: The Rise and Fall of Strict Criminal Liability Richard G. Singer Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Criminal Law Commons Recommended Citation Richard G. Singer, The Resurgence of Mens Rea: The Rise and Fall of Strict Criminal Liability, 30 B.C.L. Rev. 337 (1989), http://lawdigitalcommons.bc.edu/bclr/vol30/iss2/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. THE RESURGENCE OF MENS REA: III — THE RISE AND FALL OF STRICT CRIMINAL LIABILITYt Richard G. Singer* Over the past two centuries, the criminal law's concern with the moral blameworthiness of the criminal defendant has declined dras- tically.' Criminal law, in both theory and practice, has come to be seen as merely one more method used by society to achieve social control and crime reduction; the notion that the criminal law is unique because of its moral underpinnings and its infliction of blame-bearing punishment has been diluted significantly. Perhaps the prime example of this process is the growth of so-called "public welfare offenses," which have been the subject of much writing and analysis.3 By the mid-twentieth century, courts were often too t Copyright 0 1989 Richard Singer. *Professor and Dean, Rutgers-Camden Law School. The shift in the meaning of "mens rea" from "moral guilt" to a "much narrower and more confining approach" has been well documented. E.g., Brett, Strict Responsibility: Possible Solutions, 37 Mon. L, REV. 417, 418-20 (1974); see also Perkins, The Civil Offense, 100 U. PA, L. REV. 832 (1952); Perkins, Alignment of Sanction with Culpable Conduct, 49 Iowa L. REV. 325 (1964); Sayre, Public Welfare Offenses, '33 CoLum. L. REV. 55 (1933). 2 Because the justification of slate intervention in any criminal event is the involvement of the public welfare, the phrase "public welfare offenses" is, at best, misleading. When Dean Sayre used it in his article, supra note 1, he obviously was aware of this incongruity. The same cannot be said, however, of Chief Justice Taft who, in United States v. Bahia, 258 U.S. 250, 252 (1922), argued that strict liability was necessary in the drug area because "there has. been a modification of this view [that owns rea is required in criminal prosecutions] in respect to prosecutions under statutes the purpose of which would be obstructed by such a require- ment." The difficulty, of course, is that this proffered explanation is even more applicable to "real" crimes, such as rape, homicide, theft, and burglary. Among the articles discussing strict liability, See C. WILLIAMS, CRIMINAL LAW: THE GENERAL PART Ch. 7 (1st' ed. 1953): J. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW CIL 10 (2d ed. 1960); R. PERKINS & BOYCE, CRIMINAL LAW CIL 7, § 5 (3d ed. 1982); Sayre, Mens Rea, 45 HARV. L. REV. 974 (1936); Stallybrass, The Eclipse of Mans Rea, 52 LAw Q. REV. 60 (1932); Turner, The Mental Element in Crimes at Common Law, 6 CAMBRIDGE L.J. 31 (1936); Jackson, Absolute Prohibition in Statutory Offenses, 6 CAMBRIDGE L.J. 83 (1936); Mueller, Mens Rca and the Law Without It, 58 W. VA. L. REV, 94 (1944); Remington, Liability Without Fault Criminal Statutes — Their Relation to Major Developments in Contemporary Economic and Social Policy: The Situation in Wisconsin, 1956 Wis. L. REV. 625; Devlin, Statutory Offenses, 4 J. SOC'Y PUB. TCHRS. L. 206 (1958); Wasserstrom, Strict Liability in the Criminal Law, 12 STAN. L. REV. 731 (1960); Stan's, The Regulatory Offense in Historical Perspective, in EssAvs IN CRIMINAL SCIENCE (G. Mueller et al. ed. 1961); Note, Criminal Liability Without Fault: A Philosophical Perspective, 75 Comm. L. REV. 1517 (1975); Paulus, Strict Liability: Its Place in Public Welfare Offenses, 20 CRIM. L.Q. 445 (1978); Peiris, Strict Liability in Commonwealth Criminal Law, 3 LEGAL STUD. 117 (1983). 337 338 BOSTON COLLEGE LAW REVIEW [Vol. 30:337 willing, in the cases they labeled "public welfare offenses," to ignore the learning of centuries4 that blameworthiness was relevant to criminal stigma and punishment. Instead, as in many other areas of law, they applied a clear utilitarianism to an area where moral concerns should dominate.5 There were, indeed, calls for the total abolition of moral blame as a predicate for criminal liability. 6 Within the past two decades, however, in both this country and other common-law jurisdictions, both court decisions and the rec- a There is, of course, an ongoing and unresolved dispute over whether the criminal law always required mew rea. Holmes argued that in the "original" criminal law mens rea was not required. See O.W. HOLMES, THE COMMON Lem Lecture II (1881). But others have disputed Holmes. See, e.g., Isaacs, Fault and Liability, 31 HARV. L. REV. 954 (1918). Pollock and Maitland believed that early criminal law did not require mens rea. 2 F. Pouoms & F. MAITLAND, THE HISTORY OF ENGLISH LAW 470 (2d ed. 1898); see also Sayre, The Present Signification of Mens Rea in the Criminal Law, HARV. LEGAL ESSAYS 399, 401 (1934); Mueller, Tort, Crime and the Primitive, 461 CRIM. L. & CRIMINOLOGY 303 (1955). As one writer has observed, however, "[t]hough the early law did not set forth criminal intent as a necessary element of criminality, an examination of the common law crimes will show that it would be impossible to commit most of them without an evil intent." Note, The Development of Crimes Requiring No Criminal Intent, 26 MARQ. L. RE Y. 92, 92 (1942); see also Mueller, On Common Law Mens Rea, 42 MINN. L. REV. 1043, 1101 (1958) ("Contrary to general belief there are no common law offenses in which mens rea is not required ...."). Although I tend to favor Isaacs' argument that liability was never truly strict, the issue for our current purposes is moot. There is no debate that, by the middle of the thirteenth century, when Bracton wrote De Legibus Angelae, mens rea was becoming necessary, and that by the beginning of the seventeenth century, it was firmly established as a sine qua non for criminal conviction. On the other hand, there is also little dispute that at least some fictions, such as constructive malice, and a presumption of malice in a killing, had both procedurally and substantively affected this, requirement. 1 hope to explore the presumption of malice, and presumptions generally, at some later point. Here, however, the key point is that the common law doctrine of mens rea was generally accepted for at least three centuries prior to the onset of strict liability crimes, and that there is a good argument that criminal sanctions were not actually imposed without mens rea, even in the tenth and eleventh centuries. 5 See Manchester, The Origins of Strict Criminal Liability, 6 ANGLO-AM. L. REv. 277, 279 (1977). Manchester interprets the imposition of strict liability, as well as the acceptance of the doctrine of implied malice, as "representative of an emerging tendency towards applying in criminal law an objective standard, to which all must measure up at their peril, in place of the older subjective standard." Manchester is correct so far as he goes, of course, but as 1 have tried to show in the two preceding entries in this series, the move toward objectivization in the criminal law that occurred in the nineteenth century was reflected in numerous doctrinal changes, many of which have recently been challenged. See Singer, The Resurgence of Mens Rea: I — Provocation, Emotional Disturbance and the Model Penal Code, 27 B.C.L. Rev. 243 (1986) [hereinafter Singer 1]; Singer, The Resurgence of Mens Rea: II — Honest But Unreasonable Mistake of Fact in Self Defense, 28 B.C.L. REv. 459 (1987) thereinafter Singer Ill. Selznick notes the shift to protection of public and social interests as a "master trend" in the American legal system. See Note, Liability without Fault: Logic and Potential of a Developing Concept, 1970 Wis. L. REV. 1201, 1204 (citing Selznick, Sociology of Law, paper prepared for the international Encyclopedia of the Social Sciences, Berkeley, Cal., Apr. 1965, at 50, 57). 6 The most famous of these calls is from Dame Barbara Wuoton, who argues that mens rea has "gotten in the wrong place." See B. WOOTON, CRIME AND THE CRIMINAL LAW 52 (1963). March 1989j THE RESURGENCE OF ME NS REA 339 ommendations of academic reform groups have slowed and possibly reversed the expansion of strict criminal liability. In England' and Canada,' law revision commissions have urged the abolition of strict liability crimes and the adoption of a requirement that the prose- cution always be required to show at least that the defendant failed to act prudently. The Canadian Supreme Court has essentially adopted that viewpoint, although apparently placing the burden of proof on the defendant to show clue care." In the United States, the Model Penal Code similarly has recommended eliminating strict liability crimes, and replacing them, if at all, with non-criminal "violations."'" This article reassesses the history of strict criminal liability and measures the impact of these recent changes and proposals. Part I revisits the beginnings of strict liability in England. Although this story has been told before, most forcefully and notably by Dean Sayre," who argued that strict liability statutes were children of the Industrial Revolution, I believe that the first strict liability crimes in England served the function of closing a gap in tort law, and were not overly "public welfare" oriented.

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